Meenakshi v. Excise Inspector & Anr.

K.P Balanarayana Marar, J.:— Revision is directed against the judgment of Additional Sessions Judge, Paravur in Crl. A. No. 157 of 1990. The appeal was presented against the conviction and sentence entered by J.F.C.M, Paravur against revision petitioner in C.C No. 277 of 1983. P.W 3, the preventive officer attached to the Excise Circle Office, Paravur and P.W 2, another preventive officer while they were in the course of patrol duty on 9.9.1988 in Kottuvally Village, the accused walking along a footpath holding a plastic can. She tried to run away from the place. But she was detained by the officers and the can was checked. The can was found to contain a liquid which on smelling and tasting was ascertained to be contraband arrack. The can was seized and a mahasar was prepared which was attested by P.W 1. After enquiry, complaint was filed before court under sec. 50 of the Kerala Abkari Act alleging commission of offence under Sec. 55(a) of the Act. Out of the liquid contained in the can, a portion measuring 150 ml. was taken out and sent to the chemical analyst which on analysis was found to contain 35.85% by volume of ethyl alcohol.

2. The accused pleaded not guilty to the charge. There witness were examined on the side of the prosecution and Ext. P1 to P4 were marked. The Magistrate after trial found the accused guilty, convicted her and sentenced to under go simple imprisonment for a period of six months and to pay a fine of Rs. 1000/- and in default to undergo simple imprisonment for a further period of one month. On appeal, the Additional Session Judge confirmed the conviction and sentence. Hence the revision. Heard Counsel for petitioner and Public Prosecutor.

3. The conviction under sec. 55(a) of the Act is assailed by counsel on the ground that a person charged under that provision for possession of liquor can be punished only if such possession has been proved to be in the course of transit for export. In support of this contention, counsel relies on the decision of this Court in Rajeevan v. Excise Inspector (1995 (1) KLT 38). This Court held that the accused must be found in possession of liquor in the course of export or import or movement through the State territory to attract Sec. 55(a) of the Act. On hearing counsel and public prosecutor and on a reading of Sec. 55(a) along with the amendment introduced in 1975, the finding in the aforesaid decision appears to be against the provision contained in the statute as amended in 1975. Such a view is seen to have been taken by interpreting the words shown within, brackets in some of the textbooks. In order to understand the position of law, the clause as it stood before the amendment and after the amendment are to be read and the reasons which led to the amendment are to be correctly understood.

4. Sec. 55(a) of the Act before the amendment in 1975 reads thus:

“Whoever in contravention of this Act or of any rule or order, made under this Actor, of any licence or permit obtained under this Act.

(a) imports, export, transports or possesses liquor or any intoxicating drug; or…”

5. The word “transits” was introduced in that clause by Abkari (Amendment) Act, 1975, Act 10 of 1975. The reason for the amendment as mentioned in the Statement of Objects and Reasons is that the Abkari Act did not contain any provision to regulate the movement of liquor or intoxicating drugs from one place in a neighbouring State or Union territory to another place in that State or Union territory through the territories of the State of Kerala. Such movements of liquor and intoxicating drugs were being done without the knowledge of the Excise authorities of Kerala. It was therefore not possible to prevent the sale of such goods in this State or other malpractices in the course of such movements. It was therefore considered necessary to make provisions in the Act to regulate such movements of liquor and intoxicating drugs through this State. The Bill in sec. 4 reads:

“4. Amendment of Section 55 - In section 55 of the principal Act, in clause (a), for the words “transports or possesses”, the words “transports, transits or possesses” shall be substituted.”

6. The Bill was passed by the Legislature in the same form and the amendment aforementioned was adopted.

7. Clause (a) after the amendment reads:—

“a) imports, exports, transports, transits or possesses liquor or any intoxicating drug….”

8. The clause therefore contemplates possession of liquor or any intoxicating drug in contravention of the Act or of any rule or order made under the Act or of any licence or permit obtained under the Act an offence under sec. 55 of the Act. The import of liquor or any intoxicating drug in contravention of the Act or of any rule or of any licence by itself is an offence. Similarly export is also made an offence under that clause. Transporting of liquor or transit of liquor made in contravention of the Act or of any rule or of any licence is also made an offence. In short, each of the acts mentioned in clause (a) has been made an-offence. That is manifested by the comma put after each of the words. The words “transports, transits or possesses” do not in any way qualify or modify the word “exports”. Each of them is an independent act made punishable as such. The amendment of 1975 was necessitated only because of the absence of the word “transit” on account of which movements of liquor or intoxicating drugs from one place in a neighbouring state or Union territory to another place in that state or Union Territory through the territories of the State of Kerala could not be regulated. On account of the absence of the word “transit” in the clause it was not possible to prevent the sale of such goods in this state or other malpractices in the course of such movements. By the amendment what was done is only the introduction of the word “transits” in that clause. The clause as it stood earlier continued in the same form in other respects.

9. As observed in the aforesaid decision, the words “transports, transits or possesses” in clause (a) of sec. 55 were not substituted by Act 10 of 1975 whereas only the word “transits” was introduced for the reasons mentioned in the amending Bill. Since the word “transits” was introduced in between the words “transports” and “or possesses” these four words were provided within brackets in some of the textbooks and shown as substituted by Act 10 of 1975. The confusion is created because of this description given in some of the text books which is seen to have been placed before the learned Judge in Rajeevan's case (supra). On a plain reading of clause (a) after the amendment, there cannot be any dispute regarding the position that possession of liquor or intoxicating drug in contravention of the Act or of any rule or of any licence is an offence under Sec. 55 of the Act and that such possession need not be in the course of export since exporting liquor or any other intoxicating drug is a specific offence under that clause. The decision relied on by counsel is therefore of no assistance to him.

10. The only other question to be considered is whether petitioner has been found possessing liquor or intoxicating drug in contravention of the Act or of any rule or of any licence or permit obtained under the Act. The offence was detected by P.Ws 2 and 3, the preventive officers attached to the Excise circle Office, Paravur. Both of them have spoken about the apprehension of the accused, the seizure of the can, the ascertainment of the contents by smelling and tasting, arrest of the accused and production of the accused and the contraband article before court. The independent witness P.W 1 has not supported the prosecution version. But he admitted that he had subscribed his signature to the mahazar. The lower appellate court was therefore right in observing that P.W 1 was trying to help the accused who belongs to the same place to see that she escapes from the clutches of the law. The liquid seized was found to be an intoxicating drug. The report of the analyst (Ext. p4) shows that the liquid analysed contained 35.85% by volume of ethyl alcohol. The can possessed by the petitioner contained 10 litres of that liquid. It has not been shown that she had any licence or permit to possess that much quantity of arrack. The ingredients of Sec. 55(a) of the Act have therefore been satisfied. In this connection learned counsel for petitioner wanted the offence to be brought within Sec. 58 of the Act by pointing out that what was found in the can was illicit liquor, possession of which is punishable under Sec. 58 of the Act. But in order to attract sec. 58 of the Act, the prosecution has to show that the liquor or intoxicating drug was possessed without lawful authority and knowing the same to have been unlawfully imported, transported or manufactured, or knowing that the duty, tax or rental payable under the Act has not been paid therefore. These ingredients have not been spoken to by the preventive officers. The offence can be brought under that section only if the person is proved to have knowledge of the unlawful possession of liquor or any intoxicating drug. On the other hand, such knowledge need not be proved for bringing the offence under sec. 55(a) of the Act whereas mere possession of liquor or any intoxicating drug in contravention of the Act or of any rule or of any licence or permit obtained under the Act is sufficient. The conviction of revision petitioner under sec. 55(a) of the Act is therefore proper.

11. For the aforesaid reasons, the revision is found to be devoid of merits and is hereby dismissed.